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Decision No. 15,522

Appeal of ILENE V. CLINTON from action of the Board of Education of the Enlarged City School District of the City of Troy and Michael Pollack regarding an election.

Decision No. 15,522

(February 2, 2007)


Girvin & Ferlazzo, P.C., attorneys for respondent board of education, James A.P. McCarthy, Esq., of counsel


MILLS, Commissioner.--Petitioner, an unsuccessful candidate in May 2006 for a seat on the Board of Education of the Enlarged City School District of the City of Troy (“respondent board” or “board”), seeks to set aside the election.  She also names as a respondent Michael Pollack, who won a seat on the board with the third highest number of votes in the election.  The appeal must be dismissed.

On May 16, 2006, the district conducted its school board election with five candidates running at large for three seats.  The final vote tally was as follows:

Jason Schofield              883

Patricia O’Grady             786

Michael Pollack              668

Mary Marro-Giroux            666

Ilene V. Clinton             573

Residents in the Town of Brunswick voted on machine number 150792, located at School #18 in the city of Troy.  When the voting totals were taken from that machine, petitioner was reported to have received a total of two votes on the machine.  On May 17, 2006, at a Special Meeting of the board, six people in attendance stated that they had voted for petitioner on that machine.  At the meeting the results of the election were canvassed and certified.

On May 19, 2006, representatives from the board of elections tested the voting machine and found that the tumbler recording votes for petitioner would not advance beyond a total of two votes.  The other candidates’ tumblers appeared to function correctly.  A total of 259 people voted on that machine as reflected in the signed voter pages.

Petitioner maintains that the difference between her vote total (573) and that of winner of the third seat, Michael Pollock (668), is 95 votes.  She contends that but for the malfunctioning machine, she could have received 96 additional votes, resulting in her election to the board. She submits affidavits from 43 voters who state that they voted for petitioner on the defective voting machine.  Petitioner asks that a new election be ordered for the residents of Brunswick, or that the 259 people who voted on the malfunctioning machine be allowed to re-vote.

Respondents contend that Michael Pollack was not personally served, that petitioner failed to join the other candidates for school board as necessary parties, and that the appeal is untimely as to these candidates.  Respondents also allege that petitioner has failed to prove that the alleged irregularities affected the outcome of the election, were so pervasive that they vitiated the electoral process or demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

The petition must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Section 275.8(d) of the Commissioner’s regulations provides in pertinent part: "If an appeal involves the validity of a school district meeting or election, . . . a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent" (emphasis added).

In this case, although petitioner named Michael Pollack as a respondent in the caption of her petition and attempted personal service on him, she was unsuccessful in effecting service.  Furthermore, if petitioner’s request for a new election were ordered, the rights of all of the successful candidates would be affected.  Petitioner has not named or personally served the other members of respondent board who were successful candidates in this election.  Therefore, the appeal must be dismissed for failure to join necessary parties.

In light of this disposition, I need not address the parties’ remaining contentions.